Multi Stock Pty Ltd v Wilmore
[2012] QCAT 162
•31 March 2012
| CITATION: | Multi Stock Pty Ltd and Anor v Willmore and Anor [2012] QCAT 162 |
| PARTIES: | Multi Stock Pty Ltd trading as JLP Real Estate Laurel Coleman (Applicants) |
| v | |
| Mathew Willmore Robyn Bell (Respondents) |
| APPLICATION NUMBER: | MCDT101-11 / MCDT77-11 (Wynnum) |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 22 December 2011 |
| HEARD AT: | Wynnum |
| DECISION OF: | John Bertelsen, Member |
| DELIVERED ON: | 31 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondents pay to the applicants the sum of $5,650. 2. The Residential Tenancies Authority pay out the sum of $1,760.00 rental bond to the lessor in part satisfaction of that order. |
| CATCHWORDS: | Rent arrears – tenants’ expenditure – state of premises at vacate – mould within premises and state of premises at time – mould and remediation issues – substantiation of mould damage |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Finnegan, Agent |
| RESPONDENT: | Mathew Willmore and Robyn Bell |
REASONS FOR DECISION
Application
By application filed 12 October 2011 the applicants seek $10,475.13 rent arrears, payment of cleaning and repair invoices and payment for supply of pool chemicals from the respondents arising out of the former tenancy of premises 99 Sibley Road, Wynnum.
The respondents, apart from contesting the applicants’ application, filed their own claim for loss and damage in Wynnum claim 77/11 as well as in this application. The respondents initially sought $25,000 in terms of their counter claim in application 77/11, increased to $63,869.45 by statement received by the Tribunal on 6 September 2011, increased in this application to $285,095.77 further increased to $353,813.69 by statement 4 November 2011 again increased in this application at hearing to $370,594.19 (the counter claim for the purposes of this hearing).
Background and evidence
When the application and counter application came before the Tribunal on 27 October 2011 the parties were ordered to “file and serve any further material in support of the application/counter application by 4 November 2011”. On that date the application and counter application were adjourned due to time constraints to 22 December 2011.
At hearing the Tribunal was furnished with all material the applicants and respondents relied on and both applicants and respondents were afforded the opportunity to examine one another’s material not previously forwarded.
The premises was first occupied by the respondents on 8 February 2008 and latterly subject to a fixed term tenancy agreement for the period 20 August 2010 to 18 August 2011. It is common ground the premises was vacated by the respondents on 9 September 2011 after the Tribunal issued a warrant of possession on 8 September 2011 for the respondents to vacate by 12 September 2011. Rent at that time was paid to 2 July 2011.
The applicants’ claim
Rent
The applicants claimed rent for the period 2 July 2011 to 9 September 2011 that is to say 70 days @ $445 per week = $4,450 less a ledger credit of $35 leaving a balance owing of $4,415. The respondents did not challenge that calculation.
Windows and sills $320
The applicants asserted that windows and sills were left in an unclean state and produced photos taken subsequent to vacate. Those photos clearly depict windows and sills in an unclean state with built up dust, dirt, grime and leaves. The respondents stated that they were advised to leave the windows and sills undisturbed due to their being contaminated with the same mould as screens, blinds, walls and other surfaces throughout the premises. These reasons were proffered to the owner’s agent in response to a telephone call from the owner’s agent on 15 September 2011 when the owner’s agent asked if the respondents were coming back to clean the windows and sills.
Repairs $5,313 including GST
a) Repair and repaint balustrading $320
The applicants claimed the repair and repainting of balustrading gnawed or chewed by the respondents’ dog. The fixed term tenancy agreement provided for the keeping of a cat on the premises. However the respondents kept a dog. The respondents admitted this claim at $320.
b) Supply and install new security door $310
The applicants asserted the security door was removed and placed under the premises. It rusted and became unserviceable. The respondents stated they removed the existing back security screen door and rehung the timber weatherproof door so as to gain a second point of entry. Additionally, a folding clothesline blocking the doorway was removed. They asserted the security screen door was stored on its edge under the premises and on supports. Any deterioration of that door requiring the installation of a new security screen door was due to the age and condition of that door in the first place.
c) Lay new turf to entire front yard $2,100
The applicants asserted the whole of the front yard required returfing due to grass depletion caused by vehicles and boats being parked on the lawn area. Photos produced by the respondents indicated part only of the front yard to be grassed at commencement of tenancy. The respondents stated they were given permission to park in the front yard as the grass was already in poor condition. The applicants’ photos depicted an area devoid of grass but were limited in scope.
d) Supply and install new fold out clothesline with post kit $520
The respondents admit they took down the existing fold out clothesline and parked it under the premises where it remained on exit. They produced a photo depicting that item stored under the premises. There was no suggestion by either party it was not intact and capable of being reaffixed.
e) Remove and relay pavers on front path $480
The applicants’ photographs indicated that some pavers had broken away but the exact location was not immediately discernable. The respondents stated that pavers were lifting in areas not utilised by vehicles and that in any event pavers in the front of the premises were cracked and lifting at time of commencement of tenancy.
f) Replace damaged flyscreen on back door $90
The applicants asserted the fly screen was fully intact and serviceable at tenancy commencement. The respondents stated the flyscreen was damaged on entry and remains so with no additional damage on the part of the respondents during the course of the tenancy.
g) Patch holes in walls in sleep out and repaint $180
The respondents admit this claim although comment that the sum quoted for repair appears excessive.
h) Build paling screen with gate underneath house separating paved area from under house $510
The respondents stated there was no screen as such at commencement of tenancy only some bamboo screening left by a previous tenant. They built a screen and gate to secure the underneath of the premises. They stated they were told by the owner’s agent to remove the screen and gate they constructed and to keep the old bamboo screening. The old bamboo screening was apparently past its use by date.
i) Repair front fence (brick pillar removed) replace with new concrete post and install metal railing $320
The respondents admit this claim.
Pool chemicals payable by respondents $332.13
The owner was responsible for servicing the pool and the respondents for pool chemicals. The respondents complained of leaves and mangoes from adjacent mango trees and other trees falling into the pool and that particularly after Christmas 2010 there was lots of mud, dirt and debris. They complained the backyard was overgrown. Additionally that on 29 December 2010 the pool pump was left running after servicing by Swimart Tingalpa. The respondents allege Swimart Tingalpa inadequately and incorrectly treated the pool and that they the respondents spent money correcting chemical imbalance which had made the pool unusable for some six months. The applicants asserted matters of incorrect servicing should have been taken up directly with Swimart Tingalpa; that the respondents had been in occupation for some three years and only now complained about the invoices for pool chemicals; that the overgrown state of the backyard was due to inattention on the part of the respondents; that if the respondents kept the backyard in order any pool problem could have been avoided; that it was the respondents’ responsibility to keep the pool clean for their own use.
Counter application
The respondents’ counter application is essentially for loss and damage resulting from their possessions being affected by mould as well as for expenditure by them during the course of the tenancy.
The respondents asserted a history of water problems in that:
§They first noticed water at the very front of the premises within three months of moving in. They notified the agent but nothing was done.
§A property inspection took place some three months later i.e. six months after commencement. The owners did some repairs putting an awning over the front steps and resleeving part of the roof.
§In February 2010 the owner attended the premises and was shown where the roof was leaking.
§An inspection was carried out on 14 September 2010. A report was prepared.
§Leaks in the front entry, second bedroom, lounge, kitchen and bathroom were identified.
§The respondents moved property away from affected areas and packed up other property to avoid damage.
§Respondent Mathew Wilmore ran his business from the premises. Some relatives stayed with the respondents at times. The respondents asserted their health was affected.
Upon their return to the premises on 11 January 2011 the respondents discovered the premises had been “inundated with water and belongings were covered in mould”.
The respondents' heads of damage as per listing dated 4 November 2011
Item 1.1 Rent reduction $440 – 1 weeks rent – The respondents stated that they did not have vacant possession immediately upon entry; that prior tenants were still collecting their belongings. No claim for any rent adjustment was made at the time.
Item 1.2 loss of amenity 50% rent reduction from 11/1/11 to 18/8/11 at $222.50 per week = $6,897.50 – The respondents were away for three weeks from 22 December 2010 to 11 January 2011. The premises was closed and vacant. Upon return the respondents found the premises inundated with water and belongings covered in mould. The respondents were directed by the agent and lessor to vacate the premises but the respondents said they could not due to inability to move belongings, their duty of care and the public health risk. Sample photos of damage were sent to the applicants on 24 January 2011. Rent was withheld in an attempt to have applicants respond to maintenance issues and enter negotiation.
Item 1.3 forced to remain duty of care – public health risk – 100% rent reduction from 19/8/11 to 9/9/11 (weekly rent $445) $1,335 – The respondents did not explain why it was necessary to remain in the premises for a further 22 days subsequent to the expiry date of the fixed term tenancy agreement other than their statement that “eventually we negotiated with insurer to have the contents of 99 Sibley Road placed into containers, where they are to be held until the settlement”. No explanation was given as to why this insurance issue could not have been addressed in the preceding seven months since 11 January 2011.
Item 2 bond release $1700 – the respondents asserted full refund of bond on the basis that quite apart from their counter claim, “the property was left in a fair and reasonable condition”. Some items of the applicants’ claim were admitted.
Item 3.1 bond clean on entry $512 – the respondents asserted they did not have “vacant tenancy on entry” due to previous tenants still in the process of moving out. No claim for rent diminution was made at the time.
Item 3.2 cleaning of yard and removal of waste $630.30 – the respondents asserted that time and expense was incurred in cleaning up the yard and removing rubbish. No claim for rent diminution or compensation was made at the time.
Item 3.3 replacement of faulty front door lock and fitting of handle $249.50 (materials and own labour) – upon entry into possession the respondents assert they replaced the lock and fitted a handle. No claim for reimbursement was made at the time.
Item 3.4 replacement of back door lock and make safe entry $191.88 (materials and own labour) – the respondents of their own volition rehung the back door and installed a new lock after removing the security screen door. That apparently enhanced rear access to the premises. No claim for reimbursement was made at the time.
Item 3.5 replacement of faulty kitchen light fittings $326.92 (materials and own labour) – the respondents asserted having made this replacement. The respondent Mathew Willmore is an electrician by trade. The tax invoice for materials $86.92 was directed to him at Mathlec Pty Ltd 99 Sibley Street, Wynnum West and was dated 17 March 2010. Despite suggesting they would be reimbursed no evidence of prosecution of their claim either at the time or during the course of the tenancy was produced. The applicants stated that an electrician attended with new fittings and bulbs but the respondents had already effected the replacement.
Item 3.6 replacement of stove elements $155.90 (materials and own labour) – the respondents asserted having to replace stove elements. The tax invoice for materials $75.90 was a cash sale and was dated 15 September 2010. Despite suggesting that they would be reimbursed no evidence of prosecution of their claim either at the time or during the course of the tenancy was produced.
Item 3.7 replacement of faulty security sensor light $118.50 (materials and own labour) – The respondents asserted having to replace a faulty dual censor light at the front entry stating it was a safety and security issue. The tax invoice for materials $38.50 was directed to Mathlec Pty Ltd 99 Sibley Street, Wynnum West and was dated 17 April 2009. Despite suggesting they would be reimbursed no evidence of prosecution of their claim either at the time or during the course of the tenancy was produced.
Item 3.8 unblock household sewer drains $366.98 (materials and own labour) – the respondents asserted they were instrumental in rectifying sewer drain blockage and claim $46.98 for materials, a 180cm coiled drain and sink cleaner and chemicals. Plumbers arranged through the owner attended on two occasions and the sewerage lines were cleared.
Item 3.9 repairs to leaking toilet $99.95 (materials and labour) – the toilet water inlet pipe had corroded. The respondents replaced it with flexible piping costing $19.95. The replacement cost was never pursued.
Item 3.10 replacement of globes $184.54 (materials and own labour) – the respondents asserted light globes blowing at a rate exceeding the norm. The issue was not pursued.
Item 3.11 clean up following water ingress $3,000 – the respondents asserted water ingress resulting from massive downpour in January 2011. The premises was closed, vacant and unventilated for the period 22 December 2010 to 11 January 2011. The respondents returned to find water damage and mould. They emailed the owner’s agent and proceeded to clean up though it would appear that at some point subsequent they were advised to limit their contact with mould.
Item 4 swimming pool repairs, servicing & equipment $400 – the respondents asserted excessive electricity running cost, poor servicing by Swimart Tingalpa, replacement of broken equipment and chemicals. The respondents’ items list totals $506.02 and covers the period 20 October 2008 to 12 March 2011. Despite suggesting verbal notification no formal notice was given nor action taken at the time. The applicants stated that the swimming pool pump was required to be replaced twice during the course of the tenancy and that Swimart Tingalpa had advised that this was due to the filter not being cleaned.
Item 5 improvements $276.89 – this involved the respondents installing lighting at the bottom of the back stairwell for safety reasons and installation of fluro lights under and at the side of the premises. The materials cost of $276.89 is supported by a quote from Lawrence & Hanson Suppliers dated 3 November 2011 valid to 3 December 2011 i.e. subsequent to the respondents vacating.
Item 6 damages and loss of property $275,000 – this is an estimate based on quotations obtained by the respondents as well as by reference to the sum for which the respondents contents were insured ($275,000). The claim refers to a catalogue of damaged and lost property. It is nothing more than a list with a purported replacement value assigned to categorised items.
The entity “All Asset Appraisals” by valuation dated 31 August 2011 “inspects and advises on the value of water damaged goods in relation to insurance claim”. The goods are comprised of furniture, decorative art, collectables and other items. The valuation includes the value of listed items at $63,300 with other items requiring an estimated $20,000 restoration with still some other items requiring specialist assessment.
The entity “Juvenaire” by quote of 9 August 2011 states that to pack, remove, clean, decontaminate and place in storage all affected contents would be $35,000 plus with a reduced figure or $20,000-$25,000 applicable to salvageable contents only.
The entity “John’s Marine Electrical” by report dated 9 August 2011 concludes that a number of electrical appliances be replaced due to excessive corrosion. No specific value is placed on such items. The report further concludes that some marine items should not be installed as they could not be considered reliable and estimates the value of these items at approximately $10,000. The applicants asserted some items were under the premises which is not waterproof.
Item 7 additional costs incurred limited and pending total $14,141.22.
Item 7.1 mould sampling and testing $3,478.82. Red Fox Building Biology attended the premises during August 2011 carrying out an inspection, taking samples and testing. It concluded that professional mould remediation was required.
Item 7.2 building report $440.00 – “Building Inspection Services” carried out its inspection on 31 August 2011. Issues, as they existed at the time of inspection, were assessed. Serviceability defects were observed at the time of inspection. The report concluded “the roof material in its current condition is not considered a fully waterproof cover”. It recommended major roof repairs be undertaken.
Item 7.3 container transport and hire $3,456.20 – these are moving costs that involved the respondents placing contents in hired storage containers in September 2011.
Item 7.4 disposal of contaminated household contents $715.00 – this is the cost of hiring green bins to dispose of contaminated household contents in September 2011.
Item 7.5 appraisals $880.00 – the cost of the All Asset Appraisals valuation. This was an appraisal of water damaged contents conducted on 31 August 2011.
Item 7.6 mould remediation $3,514.50 – this is the cost of cleaning mould affected contents, packing same into two containers and travelling to “insured’s home” in northern NSW as per Insight Restorations invoice of 7 October 2011.
Item 7.7 medical expenses $325.45 – cost of script and replacement contact lenses August/September 2011.
Item 7.8 safety equipment and personal protective equipment $138.51 – in handling mould affected contents the respondents were extremely careful.
Item 7.9 veterinary expenses $855.95 – this relates to examination of respondents’ cats. No ongoing issues were discernable. It appears to have been more precautionary in nature than anything else.
Item 7.10 electricity $241.01 – this relates to additional electricity consumed in the running of fans for ventilation, the pool pump and additional cleaning and washing during the period March to August 2011.
Item 7.11 gas $41.68 – additional gas usage claimed for cleaning and washing during the period March to September 2011.
Item 7.12 packing boxes $64.10 – removal and storage of contents from water affected areas.
Item 8.1 loss of income Robyn Bell $2,394.17. The respondent asserts unable to work 1 August 2011 to 8 September 2011.
Item 8.2 Mathew Willmore loss of income $10,000 – respondent asserts unable to work, presumably August/September 2011 even though he ran his business from the premises.
Item 9 remediation of paperwork and photographs $12,600.50 – there was no evidence provided as to the state of these items at or about the time first affected by mould i.e. 11 January 2011 and shortly before. Juvenaire’s estimated remediation cost of $11,500.00 plus GST is contained in an email dated 2 November 2011.
Item 10 replacement of certified copies of official documentation $4,000 – there was no evidence provided as to the state of these items at or about the time first affected by mould i.e. 11 January 2011 and shortly before.
Item 11 mould remediation and restoration of artworks, collectables and artefacts $18,601.00. This cost has not been fully appraised due to the cost of such appraisal, lack of access to items in containers. The respondents primarily rely on the RSM Art Conservation quote dated 2 November 2011.
Item 12 Court fees $265.00 – the respondents claim the cost of lodgement of their claim in application 77/11 (effectively their initial counter claim).
The further categorised listing totalling $370,594.19 is accompanied by an item listing reciting a quoted cost/charge by reference to various retailers, suppliers, contractors and valuers as per a legend “Q1 to 176.” The listing appears in large part to quote replacement costs based on enquiries.
Further evidence
The applicants stated the little room at the front of the premises (the entry area) had no windows, no ventilation other than the opening of the front door and agreed that it was a damp area that could grow mould. Mould was not recorded as an issue/problem on the property inspection report of 14 September 2010.
The applicants stated that water streaks on the walls were caused by condensation; that this was an old home 60-70 years old with high ceilings; there is no insulation as such; that portions of the roof were resleeved in October 2010; that wind driven rain ingressing up and under the eaves was the cause of any water entry in January 2011; that photos provided by the respondents at that time depicted water leaking down walls and little pools of water on the floor; that one of the owners was a builder who attended the premises in April 2009, October 2010 when the roof was resleeved and again in February 2011; that in January 2011 no issues arose until the applicants made a demand for rent; that the respondents continued to reside in the premises for another eight months after January 2011 despite opportunity to vacate.
The applicants further asserted there was never any claim for loss of amenity during the course of the tenancy; that issues arising during the course of the tenancy if complained of at the time would have been addressed by the owner. No invoices were ever presented by the respondents to the applicants during the course of the tenancy.
During the course of the tenancy the applicants issued entry notices on 27 November 2008, 3 April 2009, 11 May 2010, 14 October 2010 and 4 November 2010 for repairs and maintenance which included but not limited to replacement of the gas cook top, ensuite shower grate, two pool filter pumps, pest treatment, termite inspections and TV antenna replacement.
Notices to remedy breach for non-payment of rent were issued by the applicants on 16 February 2009, 3 February 2010, 2 November 2010, 6 January 2011, 11 March 2011, 19 April 2011, 5 May 2011, 20 May 2011, 8 June 2011 and 23 June 2011.
Notices to leave were issued 6 June 2011 (statutory two month end of lease) and 30 June 2011 for rent arrears.
The property inspection report of 23/5/2011 comments that, “water leaks through the ceiling and down the walls during heavy raid. This has caused the lining board to swell slightly. Tenant reports this has caused mould in the house”. The report further comments, “tenant complained about mould causing damage to their belongings-mould not visible at time of inspection”.
The respondents obtained the following reports, quotes, valuations and statements:
(1)Building Inspection Services Queensland 31/8/11;
(2)Red Fox Building Biology report undated but based on inspection and sampling 3 August 2011 through 16 August 2011;
(3)Juvenaire quote to pack remove clean etc based on premises inspection 5 August 2011;
(4)All asset appraisals valuation 31 August 2011;
(5)John’s Marine Electrical examination and valuation dated 9 August 2011;
(6)Statement by Doctor Anthony Malone dated 4 August 2011.
Conclusions on evidence
The applicants’ claim
It is undisputed the respondents vacated the premises on 9 September 2011 and that at the time rent owing was $4,415.00.
The photographic evidence indicates clearly that windows and sills were left unclean with built up dust, dirt, grime and leaves. They ought to have been cleaned. Though no quote or invoice was produced the Tribunal accepts that $320.00 is within the reasonable range for such cleaning.
Balustrading repair was admitted at $320.00.
It was not necessary to supply and install a new security door. No evidence was produced to support the contention the existing security door was unserviceable.
Photos of the front yard at tenancy commencement suggest it was only partly grassed. Applicants’ photos were not sufficient to suggest otherwise. The applicants never took issue with the respondents parking in the front yard.
The fold out clothesline was intact at tenancy end. It could have been reaffixed.
There was no evidence sufficient to cast responsibility on the respondents for path pavers broken away.
Purported damage to the flyscreen was minimal. It may well have been that way at tenancy commencement and gone unnoticed.
The patching and painting over of holes in the sleep out was admitted.
It was never clear to the Tribunal what was under the house in the first place such as to warrant the building of a paling screen at the expense of the respondents.
The respondents admit the cost of repairs to the front fence.
The cost of pool chemicals was the respondents’ responsibility. No evidence was produced to convince the Tribunal there should be a shift in that responsibility.
The respondents’ counter application
Item 1.1 Rent reduction $440. The respondents have waited 3.5 years to raise this issue. It is a contrived afterthought and nonsensical.
Item 1.2. The respondents’ claim for loss of amenity was first identified in the application filed 4 August 2011. Despite the premises being according to them inundated with water and belongings covered in mould, they stayed put not taking advantage of a direction by the applicants to vacate. First response proffered was inability to move belongings. That was never elaborated upon. However in their statement dated 4 November 2011 the respondents said, “additionally, our belonging and the damage to them required professional independent assessment”. Second reason proffered was “their duty of care”. To whom this duty was owed was never divulged to the Tribunal. If the respondents were referring to themselves they would have, as would any reasonable sensible person, moved out of what they asserted was at that point i.e. 11 January 2011 a mould ridden premises; but they stayed until 9 September 2011. Third reason proffered was “public health risk”. Once again how the public might have been put at risk was never divulged to the Tribunal. Whilst rent was initially withheld it was subsequently paid. The respondents had the opportunity and solid grounds on their version of events to vacate the premises in January 2011.
Item 3. The respondents cite their duty of care – public health risk to suggest they ought pay no rent at all for the period 19/8/11 through 9/9/11. There is no reason for them to be there after 18/8/11. The extended stay related to their own insurance issues.
Item 2. The bond will be applied to accord with these conclusions and findings.
Item 3.1 Bond clean on entry. The respondents have waited 3.5 years to raise this issue. It is a contrived afterthought and nonsensical.
Item 3.2 cleaning of yard and removal of waste $630.30. The respondents have waited over three years to raise this issue. It is a contrived afterthought and nonsensical.
Item 3.3 replacement of faulty front door lock and fitting of handle. The respondents have waited 3.5 years to raise this issue. It is a contrived afterthought and nonsensical.
Item 3.4 replacement of back door lock and make safe entry. The respondents have waited three years to raise this issue. It is a contrived afterthought and nonsensical.
Item 3.5 replacement of faulty kitchen light fittings. The respondents attended to this of their own volition and never claimed. It is a contrived afterthought and nonsensical.
Item 3.6 replacement of stove elements. If the respondents sought reimbursement they should have claimed. They never did.
Item 3.7 replacement of faulty security sensor light. If the respondents sought reimbursement they should have claimed. They never did.
Item 3.8 unblock household sewer drains. The respondents attended to this of their own volition and never claimed. Plumbers arranged through the applicants attended on two occasions in any event and the problem was solved.
Item 3.9 repairs to leaking toilet. The respondents carried out this minor replacement without reference to the applicants. They never claimed.
Item 3.10 replacement of globes. This claim is made years after the event and is unsubstantiated.
Item 3.11 clean up following water ingress. The presence of mould was not surprising given the older uninsulated style of the premises and the fact that it was locked up for three weeks to 11 January 2011. Anecdotally, numerous premises never before affected by mould were so affected in this period such being referable to extreme weather conditions and not structural defects or shortcomings. The sum claimed appears to have been plucked out of the air and is fanciful.
Item 4 swimming pool repairs, servicing & equipment. This claim spans some 2.5 years. Other than alleging verbal notification the respondents did nothing until now.
Item 5 improvements. The material cost for lighting installation is supported by a quote dated well after vacate and is indicative of the disingenuous nature of this claim.
Item 6 damages and loss of property. The values ascribed to numerous items is a replacement cost list calculated by reference to various reports, quotes, valuations and statements (particularly retailers). There is absolutely no evidence of the value of these items as at January 2011 (particularly clothing); no specific evidence of final sums to be applied to items loss. The loss and remediation estimates were compiled some seven months after the event relied upon by the respondents at which time the subject matter may have borne little resemblance to their condition as at 11 January 2011.
Item 7.1 mould sampling and testing – Red Fox Building Biology. This report was compiled in August 2011 and is irrelevant for assessing what might have been the case in January 2011.
Item 7.2 building report – Building Inspection Services. This report was compiled at the end of August 2011 (after tenancy expiry). It concluded the roof was not fully waterproof at that time. The most one could infer is that it was possible the roof may not have been fully waterproof in January 2011.
Item 7.3 container transport and hire. This cost is referable to the condition of contents in September 2011 not January 2011.
Item 7.4 disposal of contaminated household contents. This cost is referable to the condition of contents in September 2011 not January 2011.
Item 7.5 cost of all asset appraisals valuation. The valuation estimated the insurance value of assets listed in the valuation as at 31 August 2011 more than seven months after the water damage occurred.
Item 7.6 mould remediation. The cleaning of mould affected contents takes place some seven months after the event complained of. The packing and travelling charge would have been incurred in any event. There is no evidence as to what that cleaning charge might have been as at 11 January 2011.
Item 7.7 medical expenses. The expenses were incurred well after January 2011. The statement of Dr Anthony A’loan is dated 4 August 2011, is vague and recommends that the respondents vacate. Even so they did not vacate until 9 September 2011. No medical evidence for any period prior to January 2011 was produced. It appears the respondents were busy obtaining reports with their own health a secondary consideration.
Item 7.8 safety equipment and personal protective equipment. This equipment was utilised only after January 2011. The applicants were never made aware of any expenditure of this nature.
Item 7.9 veterinary expenses. There was no evidence of any permanent or ongoing health issues.
Item 7.10 & 7.11 electricity & gas. Additional usage was a direct consequence of the respondents continuing to reside in what they described as a mouldy premises. No claim was ever made at the time only in these proceedings.
Item 7.12 packing boxes. The decision to remove and store contents did not seem to affect the desire of the respondents to continue to reside in what they described as a mouldy premises.
Item 8.1 & 8.2. Loss of income Robyn Bell and Mathew Willmore. Given how busy the respondents were in collecting material, obtaining reports, keeping appointments and arranging inspections etc it is little wonder the respondents were unable to fulfil work obligations. It is clear that August 2011 was a very busy month for the respondents attending to these matters. No explanation why they could not have been attended to during the course of the previous seven months was proffered.
Item 9 remediation of paperwork and photographs. The remediation quote is dated 2 November 2011 some 10 months after the event. There is no estimate referable to January 2011.
Item 10 replacement of certified copies of official documentation. How $4,000 was arrived at is at best vague. It seems to be a global figure for the items stated arrived at only recently after the commencement of these proceedings.
Item 11 mould remediation and restoration of artworks, collectables and artefacts. The quote for conservation treatment is dated 2 November 2011, 10 months after the event. There is simply no calculation referable to January 2011.
Further conclusions on evidence
There was insufficient evidence to conclude that the applicants had failed to maintain the premises in a liveable and well maintained condition during the course of the tenancy but particularly in the period 8 February 2008 through 11 January 2011. In that period five entry notices were executed for maintenance purposes as well as attendances by the owner. No notice to remedy breach was ever issued by the respondents to the applicants during the entire period 8 February 2008 through 9 September 2011.
Subsequent to 11 January 2011 the date on which the respondents claim for loss and damage rests the respondents continued to pay rent to 2 July 2011 despite invitation and opportunity to vacate in January 2011.
The respondent Mathew Willmore ran his business from the premises during the course of the tenancy and particularly continued to do so well after January 2011.
The various inspections, reports, valuations were all obtained by the respondents in August, September, October and November 2011. The respondents embarked on this course of action seven months and more after the loss was sustained.
The effluxion of time January – August 2011 making the inspections, reports and valuations largely irrelevant together with the complete lack of notification to the applicants e.g. by delivery of a notice to remedy breach or notice of intention to leave in circumstances where presumably the respondents’ possessions were ever deteriorating leads reasonably to a conclusion that the respondents’ latter day claim is simply an attempt to lay blame on the applicants for their loss in the context of fulfilling prerequisite insurance obligations.
If the mould was as bad as the respondents stated it to be and there was risk to their health they could have given a notice of intention to leave for unliveability effective immediately. The Residential Tenancies Authority made available an abundance of material addressing owners and tenants rights at the time of the January 2011 floods. It is the experience of this Tribunal that many tenants in particular made the decision to move based on mould issues resulting in unliveability.
The respondents’ complaints on health issues are disingenuous. They stayed on after 11 January 2011 vacating only in response to a warrant of possession in September 2011. Their contradictory conduct is inexplicable other than to say they belatedly decided in August 2011 to mount a claim for loss and damage which rose, in concert with inspections, reports and valuations obtained from that time on, from $25,000 in their claim filed 4 August 2011 to $370,594.19 at hearing.
If indeed loss and damage was evident on 11 January 2011 there was no evidence of mitigation on the part of the respondents from that time until August 2011 when inspections, reports and valuations appeared with a flurry.
No approval was sought by the respondents for minor improvements and repairs. Rather it seems that these were made of their own volition and for their own benefit against a background of relatively static rent over a 3.5 year period. The applicants confirm that approvals were never sought.
The respondents claims to recover arbitrary costs they say they incurred at tenancy commencement are years out of time.
The respondents’ conduct from 8 February 2008 through 11 January 2011 and even after is indicative of satisfaction with the state of the premises. They renewed their tenancy agreement on 9 June 2010 for the term 28/10/10 through 18/8/11.
The respondents’ claim is ill conceived, disingenuous, contrived some seven months after the event they rely on to ground the claim. The quantum of the claim is based on evidence gathered seven months after the event and smacks of a latter day attempt at monetary gain against a background of insurance claims.
If the respondents were telling the truth about the extent of water ingress in January 2011 it is illogical that they would continue to reside in the premises suffering ongoing deterioration of possessions and health risk through to September 2011.
Whilst the respondents claimed at hearing that as at 23 May 2011 there had been water all over the walls there was no evidence as to what part that played in relation to possessions/health. The applicants’ claim that no mould was visible at the time of inspection on 23 May 2011 is consistent with the respondents’ ongoing occupation of the premises and the total absence of any complaint such as a notice to remedy breach.
The respondents have failed to substantiate the loss and damage as alleged to have occurred as of 11 January 2011. The applicants did not contribute by any lack of maintenance or shortcoming on their part to any mould damage that occurred as of 11 January 2011.
The items allowed to the applicants in terms of their claim are rent $4,415.00, cleaning of windows and sills at $320.00, balustrading at $320.00, patch holes in walls of sleep out and repaint $180.00, fence repair $320.00 and application fee of $95.00, a total of $5,650.00.
Orders
The respondents pay to the applicants the sum of $5,650.
The Residential Tenancies Authority pay out the sum of $1,760.00 rental bond to the lessor in part satisfaction of that order.
0
0
0